Court of Justice of the European Communities (including Court of First Instance Decisions)

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Action for annulment of measures - Measures against which actions may be brought - Letter addressed by a Member of the Commission to a Member State expressing an opinion as regards the compatibility of an agreement between undertakings with the competition rules of the Treaty - No binding legal effects - Exclusion - Taking account thereof by addressee Member State when adopting national measures - Immaterial
( EEC Treaty, Arts 5, 85 and 173; Regulation No 17 of the Council )

A letter addressed to the authorities of a Member State by a Member of the Commission which merely represents an initial evaluation, by the Commission' s departments, of an agreement between undertakings with regard to Article 85 of the Treaty and confines itself to suggesting amendments thereto, without producing binding legal effects such as those resulting from a decision granting exemption or a decision ordering interim measures, the procedural rights of the parties to the agreement and any person who has lodged a complaint against it being expressly reserved, cannot be regarded as an act whose annulment may be sought in an action under Article 173 of the Treaty .
The fact that the said letter led the national authorities to which it was addressed to adopt measures of domestic law does not alter its legal nature . The Commission has no power either under Article 85 of the Treaty or Regulation No 17 or under Article 5 of the Treaty to address a binding decision to a Member State as regards the conduct to be adopted by the national authorities in connection with an agreement between undertakings falling under Article 85 of the Treaty,
( The grounds of this judgment are not substantively different from those of the judgment, also delivered on 13 December 1990, in Case T-113/89 Nefarma and Others v Commission [1990] ECR II-797 .)

In Case T-114/89,
Vereniging van Nederlandse Ziekenfondsen, whose registered office is in Zeist ( Netherlands ),
Kontaktorgaan Landelijke Organisaties van Ziektekostenversekeraars, whose registered office is in Houten ( Netherlands ),
and
Kontaktcommissie Publiekrechtelijke Ziektekostenregelingen voor Ambtenaren, whose registered office is at Nieuwegein ( Netherlands ),
represented by H . P . Utermark, of the Hague Bar, and F . O . W . Vogelaar, of the Rotterdam Bar, with an address for service in Luxembourg at the Chambers of J . Loesch, 8 rue Zithe,
applicants,
v
Commission of the European Communities, represented by B . J . Drijber, a member of its Legal Department, acting as Agent, with an address for service in Luxembourg at the office of Guido Berardis, also a member of the Commission' s Legal Department, Wagner Centre, Kirchberg,
defendant,
supported by
Kingdom of the Netherlands, represented by J . W . de Zwaan, Assistant Legal Adviser at the Ministry of Foreign Affairs, acting as Agent, with an address for service in Luxembourg at the Netherlands Embassy, 5 rue C . M . Spoo,
intervener,
APPLICATION for a declaration that one or more decisions alleged by the applicants to be contained in various letters of a Member of the Commission and of a Director of the Directorate-General for Competition are void,
THE COURT OF FIRST INSTANCE ( First Chamber ),
composed of : J . L . Cruz Vilaça, President, H . Kirschner, R . Schintgen, R . García-Valdecasas and K . Lenaerts, Judges,
( The grounds of the judgment are not reproduced .)

hereby :
( 1 ) Dismisses the application as inadmissible;
( 2 ) Orders the applicants to pay the costs jointly and severally, except those incurred by the intervener, which must be borne by the intervener itself .